Attorneys for Amicus Curiae Applicants
Sierra Club Kern-Keweah Chapter
Sierra Club Mineral King Group
Tulare County Audubon Society
 
 

Plaintiffs,

v.

TULARE IRRIGATION DISTRICT

Defendant.

______________________________________
 

Case No.: 00-0192130
 

AMICUS BRIEF ON BEHALF OF SIERRA CLUB AND TULARE COUNTY AUDUBON SOCIETY

Date: October 10, 2000
Time: 8:15 a.m.
Dept: 6
 

I. INTRODUCTION.

On October 6, 2000, plaintiffs in this case submitted a motion for a temporary restraining order and preliminary injunction. Amici Curiae Sierra Club Kern-Keweah Chapter, Sierra Club Mineral King Group, and Tulare County Audubon Society (“Environmental Groups”) have members who are among the public affected by the project proposed by the Tulare Irrigation District (“TID”). The Environmental Groups submit the following to demonstrate the irreparable harm that would be caused by the project and the public affected by the proposed project.

II. AMICI HAVE MEMBERS WHO ARE AMONG THE PUBLIC AFFECTED BY THE PROJECT.

Amicus Sierra Club is a national non-profit organization of over 550,000 members dedicated to exploring, enjoying, and protecting the wild places of the earth; to practicing and promoting the responsible use of the earth’s ecosystems and resources; to educating and enlisting humanity to protect and restore the quality of the natural and human environment; and to using all lawful means to carry out these objectives. The Sierra Club’s concerns encompass watershed management, air quality, recreation, and habitat preservation. The Mineral King Group and Kern-Kaweah Chapter are local representatives of this national group working to achieve Sierra Club’s goals in the Visalia and Tulare County area.

The Tulare County Audubon Society was formed in 1973 by conservation oriented citizens and has grown to a membership of approximately 425 people. Its purposes include preserving existing habitat and ensuring future generations have the opportunity to appreciate native bird and plant species which exist today. The Society has been involved in community projects for conservation, habitat restoration and enhancement. It has worked with the City of Visalia on open space issues and grant applications to develop resources for walking, bicycling, hiking, and flood control.

III. THE PROJECT WILL DEGRADE ITS NATURAL ENVIRONMENT.

The Main Intake Canal (“Canal”) at issue is a winding natural channel converted to an irrigation canal in the late 1800s. Used as a canal for more than a century, the Canal is an historic natural resource. Approximately 14 miles of the Canal are unlined. As a result, in addition to the canal’s functional value, it is surrounded by riparian vegetation and supports Valley Oak Woodlands, creating a bucolic agricultural setting. The canal sustains numerous plant and animal species. Hundreds of Valley oaks as well as cottonwoods and other riparian vegetation grow along the Canal, with the riparian vegetation in particular providing habitat for wildlife, including species listed on state and federal Endangered Species lists, such as the Valley elderberry longhorn beetle and San Joaquin kit fox. (Declaration of Mary Moy filed concurrently, ¶¶ 2, 6, 7, 19). More common wildlife such as coyote, blue heron, red- tailed hawks, quail, owls and raccoons also depend upon the canal.

TID’s Main Intake Canal Lining Project (the “Project”), approved on December 15, 1998, involves significant changes to the Canal. The Project would straighten, widen and concretize 9.7 miles of the Canal. About five miles of the Canal lies within the boundary of TID but all of the lining is proposed for portions outside the boundary of TID. TID’s Project would also remove rubble, dig out the Canal prism and build embankments to increase the waterway’s carrying capacity.

IV. THE PROJECT WILL CAUSE IRREPARABLE HARM TO THE AFFECTED PUBLIC.

The Project would result in removal of important habitat along the canal’s path, including 213 Valley oak trees, 64 of which are heritage trees over 100 years old. (Declaration of Mary Moy filed concurrently (“Moy Declaration”), ¶¶ 2, 4.) These oak trees and riparian vegetation along the canal provide a natural ambience, which is visually pleasing to many people. Because of their natural beauty, oak trees are protected by ordinance in over 100 municipalities in California, including Visalia. (Moy Declaration, ¶15.) Many people enjoy the presence of the magnificent oak trees as they are walking, hiking, biking, or merely transiting through the nearby areas from which the trees are visible. (Moy Declaration, ¶ 30.)

Aesthetic values are an asset which can be significantly impacted by proposed construction. In Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1604, the court found a proposed subdivision could have a significant impact because it would block a public park's views to the ocean. The court concluded “it is inherent in the meaning of the word "aesthetic" that any substantial, negative effect of a project on view and other features of beauty could constitute a "significant" environmental impact under [the California Environmental Quality Act.]” (Ibid.) Here, the natural beauty of oak groves would be permanently erased in order to make room for canal construction. The aesthetically-pleasing view of Valley Oaks would be replaced by the drab functionality of concrete lined channels.

The project proponent’s consultant, CH2M Hill stated:

The Valley Oaks found along the waterways of the Kaweah have long been associated with the area’s identity. They have defined the region from cultural and natural resource perspectives and continue to add significantly to the community’s quality of life.

(Exhibit H, Declaration of Don Mooney filed with Memorandum of Points and Authorities in Support of Request for Temporary Restraining Order and Motion for Preliminary Injunction, October 6, 2000, pp. 1-2, emphasis added.)

Thus, removal of the oak trees will not only cause direct aesthetic harm, but will also interfere with the area’s “identity” and significantly decrease the “community’s quality of life.” Such degradation in a community’s quality of life has been held to be a public nuisance within the meaning of Civil Code section 3480 in some cases. (See, e.g., People v. Mason (1981) 124 Cal.App.3d 348, 352-353 [loud noises disturbing residents of housing development between 30 and 40 homes]; Wade v. Campbell (1962) 200 Cal.App.2d 54, 52 [odors, insect infestation, and dust affecting 11 plaintiffs owning 12 lots in 51-lot housing tract].) The TID recognized the removal of these trees will result in a significant impact which could not be mitigated. Therefore, it adopted a Statement of Overriding Considerations pursuant to the California Environmental Quality Act (“CEQA”) (commencing with section 21000 of the Public Resources Code).

Replacement of heritage oak trees by new plantings or offsite planting permanently destroys the natural habitat as it exists now. Natural habitat values are not “intangibles which can be moved from place to place to suit the needs of development.” (Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal.App.4th 493, 507.) Rather, the oaks lend a sense of identity and natural permanence to their setting for the very reason that they have remained inviolate and immovable for so many years. Their removal now would cause an irreparable injury to the fabric of the local community.
Additionally, the project will significantly and adversely affect the endangered animal species which depend upon the riparian vegetation for habitat and foraging grounds. The San Joaquin kit fox, a federally-listed endangered species, has declined as a species because of loss of habitat due to conversion of its natural home of grassland and scrubland. (Moy Declaration, ¶ 19.)

CONCLUSION

Amici Environmental Groups support Plaintiffs’ motion for a temporary restraining order and preliminary injunction. Heritage oak tress are irreplaceable natural resources which lend identity and character to the surrounding area. They must not be allowed to be stripped away to make way for construction which may ultimately be found to be illegal, unnecessary, and not in the public interest.

Dated: October 9, 2000

Respectfully submitted,

CHATTEN-BROWN AND ASSOCIATES
 

By:
Douglas P. Carstens
Attorneys for Amici Curiae
Sierra Club Kern-Keweah Chapter
Sierra Club Mineral King Group
Tulare County Audubon Society
 
 

• Court Ruling on TRO Application, October 11, 2000
• Declaration by Mary Moy of Resources to be lost
• Return to Mineral King Group Home Page